Decision

Acceptance Decision

Updated 1 July 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1260(2022)

8 June 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Unite the Union

and

Serco Ltd

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC on 18 March 2022 that it should be recognised for collective bargaining by Serco Ltd (the Employer) for a bargaining unit comprising “all employees up to and including supervisors on the London Borough of Brent Parking Services contract”. The CAC gave both parties notice of receipt of the application on 18 March 2022. The Employer submitted a response to the CAC dated 25 March 2022 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Sean McIlveen and Ms Stephanie Marston. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel extended the acceptance period in this case. The initial period expired on 1 April 2022. The acceptance period was extended to 25 April and extended again to 13 May 2022 and then subsequently extended to 27 May 2022 in order to allow time for the parties to try to reach a voluntary agreement, then for a membership check to take place, for the parties to comment on the subsequent report and the Panel to consider said comments before arriving at a decision.

2. Issues

4) The CAC Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application the Union said that it had written to the Employer with a formal request for recognition on 21 February 2022. The letter dated 21 February was submitted with the Union’s application to the CAC. The Union stated in its application that the Employer had responded on 7 March 2022 stating that the Union’s request was rejected, and the Employer was not willing to enter into negotiations with the Union. The email of 7 March from the Employer read as follows:

“Thank you for your letter dated 21st February 2022 in which you detail a request for Serco to recognise Unite the Union for staff on the “Brent Parking Services” contract. After considering your request, please accept this email as confirmation that we are rejecting this initial request. Please confirm should you wish to discuss further.”

6) The Union stated that the total number of workers employed by the Employer was approximately 50,000 and that 65 fell within the proposed bargaining unit. The Union stated that it had 54 members within the proposed bargaining unit. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that by embarking upon a recognition campaign, the Union’s membership had significantly increased by over 400%.

7) The Union stated that the reason for selecting the proposed bargaining unit was that all employees within the proposed bargaining unit worked under the same contract and undertook work which was distinct from the rest of the Employer’s workforce. All employees within the proposed bargaining unit sat under the same reporting line in terms of management.

8) The Union confirmed that the bargaining unit had not been agreed with the Employer. In answer to the question was there an existing recognition agreement which it was aware of, the Union stated that there was no existing recognition agreement.

9) The Union confirmed that it held a current certificate of Independence. The Union stated that it had copied its application and supporting documents to the Employer on 18 March 2022.

4. Summary of the Employer’s response to the Union’s application

10)The Employer stated that it had received the Union’s formal request for recognition on 21 February 2022 by letter. When asked what its response was, the Employer stated it had responded by email on 7 March 2022 confirming its rejection of the Union’s initial request. The Employer had asked the Union to confirm if it wished to discuss the matter further but had no response to the email until 18 March 2022, when the Union had confirmed that it would be proceeding with the application to the CAC.

11) The Employer confirmed it had received a copy of the Union’s application and supporting documentation by email on 18 March 2022.

12) The Employer stated that it agreed with the bargaining unit as proposed by the Union. The Employer had asked the Union if it wished to discuss the matter further with Acas, but the Union had elected not to.

13) The Employer confirmed that the number of workers it employed was 20,000. In answer to the question if the Employer agreed with the number of workers in the bargaining unit as defined in the Union’s application the Employer confirmed that it agreed the number claimed, as it approximately matched those employed within that unit.

14) When asked if the Employer disagreed with the Union’s estimate of Union membership in the proposed bargaining unit, the Employer stated it disagreed as there had been no requests from the workforce within the unit identified by the Union for recognition.

15) As to whether the Employer disagreed with the Union’s assertion that a majority of the workers in the bargaining unit were likely to support recognition, the Employer stated that if membership levels were as claimed, it would have expected staff to be requesting recognition directly but there had not been, to the best of the Employers knowledge, any such requests The Employer also stated that no evidence of the claimed union membership in the bargaining unit had been supplied by the Union and no evidence had been supplied that the majority of workers in the proposed bargaining unit would favour recognition.

16) The Employer confirmed that there was currently no recognition agreement in place covering any of the workers in the proposed bargaining unit. As to whether it was aware of any previous application made under the Schedule by the Union in respect of this or a similar bargaining unit, the Employer stated not applicable and that as far as it was aware, this was the only application being made by the Union.

5. The membership and support check

17) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the Union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names and dates of birth and a copy of a petition in support of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 3 May 2022 from the Case Manager to both parties. The information requested from the Union was received by the CAC on 4 May 2022 and from the Employer on 9 May 2022. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer contained the names of 70 workers and the list of members supplied by the Union contained 53 names.

19) The Union also provided a petition that consisted of 3 A4 sheets, of which the first page was headed with the Union’s logo and was set out as follows:

“Unite the Union 14 March 2022.

To Serco Management, we are writing to raise a collective grievance over Serco’s refusal to meet with Unite to negotiate a recognition agreement on the LB of Brent contract. We want Unite to represent us for collective bargaining purposes; for negotiating pay terms and conditions. We ask for a meeting to be set up with our trade union, Unite the Union, to discuss these matters”

There then followed a table with columns headed Name and Signature.

20) According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 42, a membership level of 60.00%. The check of the petition showed that it had been signed by 36 workers in the proposed bargaining unit, a figure which represents 51.43% of the proposed bargaining unit.

21) A report of the result of the membership check was circulated to the Panel and the parties on 13 May 2022 and comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

22) In an e-mail to the CAC dated 13 May 2022, the Union stated that 11 union members on the membership report had not appeared on the Employer’s list. The Union asked the CAC for the names of the 11 members so it could check against its membership records and clarify. Once the Union had checked its records, it responded in an email dated 20 May 2022, stating that three members had now left the business, however the remaining members still worked on the contract.

23) In an e-mail to the CAC dated 20 May 2022 the Employer stated that it appeared that there were names on the Union’s membership list that did not appear on the list of names the Employer provided, and that both parties probably had a different understanding of the bargaining unit.

7. Considerations

24) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

25) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(1) states that paragraph 11 applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”.

The Panel does not consider that the Employer’s response to the Union’s request dated 7 March and which is set out at paragraph 5 above, indicated a willingness to negotiate on the part of the Employer. The position of the Employer is clearly stated in its response of 7 March as being a rejection of the request. A general comment concludes the letter ‘please confirm if you should wish to discuss further’. This comment is not considered as an indication of a ‘willingness to negotiate’. The Panel therefore considers that paragraph 11 applies.

The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

26) The membership check conducted by the Case Manager showed that 60.00% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

27) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

28) The Panel considers that members of the Union would be likely to favour recognition of the Union for collective bargaining and the Case Manager’s report established that this was 60.00% of the agreed bargaining unit. Given that Union members are more likely than not to support recognition of the Union and in the absence of any evidence to the contrary, the Panel has decided that, on balance , a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Decision

29) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Sean McIlveen

Ms Stephanie Marston

8 June 2022